December 21, 2006

Court Adopts "See No Evil" Approach in Campaign Finance Case; Major Changes Could Be on the Horizon

Following up on this post, the 2-1 decision of the federal district court issued today in Wisconsin Right to Life v. FEC, if upheld by the Supreme Court, could bring us back to the days before Congress passed McCain-Feingold (or BCRA--the Bipartisan Campaign Reform Act). And the Supreme Court's decision in this case could be the next step toward a deregulated campaign finance system.

Here is the relevant background of the decision, skipping over some nuance of interest to campaign finance specialists. In the years before McCain-Feingold, corporations and unions were prohibited from spending their general treasury funds on ads that advocated the election or defeat of candidates for federal office. (The corporations or unions could set up separate PACs and solicit contributions to run such ads.) But this prohibition was easily circumvented, thanks to the Supreme Court's interpretation of the relevant law in its 1976 Buckley v. Valeo case. It ended up applying only to ads that contained express words of advocacy (so-called "magic words"), such as "Vote for Smith" or "Vote Against Jones." Thus emerged the rise of "sham issue advocacy," ads that were campaign ads in all but name. The ads criticized a candidate running for office, but ended with something like "Call Smith and tell him what you think of his lousy plan to fix Medicare."

McCain-Feingold was meant to close this loophole (along with doing other things, such as requiring disclosure of those who paid for issue advocacy and limiting party "soft money"), and it did so by adopting a "bright line" electioneering communications test. Any advertisement broadcast on tv or radio within 30 days of a primary or 60 days of the general election, featuring a candidate for federal office and broadcast to at least 50,000 people where the candidate was running for office would count as an electioneering communication, and could not be paid for with corporate or union treasury funds. Disclosure by anyone funding such ads is also required.

The constitutional problem with the bright line test is that it captured some genuine issue advocacy---an ad that really was targeted about an issue before a member of Congress (or the president) run shortly before the election. How much genuine issue advocacy there was a difficult empirical question to answer. Nonetheless, in McConnell v. FEC, the Court rejected rather quickly an overbreadth argument on these grounds (too quickly even for some supporters of the law).

WRTL is follow on litigation about this issue. The question presented is whether a corporation or union that wants to run an ad it claims really is "genuine issue advocacy" gets to have an "as applied" exemption from the law on constitutional grounds. Wisconsin Right to Life wanted to run an ad urging Sens. Kohl and Feingold (of Wisconsin) to oppose filibusters for office. This was run at a time that Feingold, but not Kohl, was running for reelection.

The first time the three judge court heard WRTL's request for an injunction barring the FEC from enforcing the electioneering communications provisions against it, the three judge court said that McConnell barred such as applied challenges. Just as Justice O'Connor was retiring from the Court, the Supreme Court unanimously sent the case back to the three judge court, saying that the issue of whether there should be as applied challenges was not decided in McConnell, and that the lower court should decide whether there should be such as applied challenges allowed and, if so, whether the WRTL plaintiffs were entitled to such a challenge.

Today's decision on a 2-1 basis was written by Judge Leon, one of the three judges who decided the lower court opinion in McConnell, whose more skeptical views about the constitutionality of the electioneering communications provision were not accepted by the Supreme Court in McConnell. The majority essentially says this: as applied challenges are allowed, and we are going to look only at the face of the advertisement itself, and not any context, to determine whether or not an as applied challenge should apply. For example, if the word lacks words of support or opposition to the candidate and the ad makes no explicit reference to the election, these factors point in favor of an exemption. The relevant "test" appears on page 20 of the pdf. The Court says it won't look behind the ads to the subjective intent of those putting up the ad, and it is unmanageable in the context of an election campaign to have expert opinion issued on whether such an ad is likely to influence voters who see the ad over how they will vote in the election. (In this case, the filibuster issue was tied in with abortion politics and could well have been seen as an attack on Feingold for anyone paying attention to politics in Wisconsin at the time).

The dissent rightfully points out the inconsistency of this "see no evil" approach with how the Supreme Court decided McConnell. McConnell was a case that said to look behind the sham issue ads and see what is the functional equivalent of express advocacy. This test is one that closes eyes to political realities. It will allow many opportunities for circumvention by corporations and unions---and I predict eventually non-disclosure as well. (That will likely be Jim Bopp's next argument should he prevail at the Supreme Court.)

But just as the dissent is right that this opinion is inconsistent with McConnell, that does not mean that there's a good chance of reversal here. The Supreme Court is changing. As I've argued, last term's opinion in Randall v. Sorrell shows the move away from deference, and I expect WRTL to continue the trend toward a chipping away at campaign finance laws. Justice Alito is not Justice O'Connor, and that may mean the move toward a deregulated campaign finance system continues.

You can find additional early reaction from Bob Bauer, Gerry Hebert, and analysis promised here.

Posted by Rick Hasen at December 21, 2006 01:40 PM